Full Judgment Text
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PETITIONER:
R. NARAYANAN
Vs.
RESPONDENT:
UNION OF INDIA AND ANR.
DATE OF JUDGMENT25/10/1989
BENCH:
NATRAJAN, S. (J)
BENCH:
NATRAJAN, S. (J)
OJHA, N.D. (J)
CITATION:
1990 AIR 746 1989 SCR Supl. (1) 720
JT 1989 Supl. 292 1989 SCALE (2)1031
ACT:
Freedom Fighters Pension Scheme: Para 4, Cl.
3(e)--Freedom Fighter--Permanent loss of vision of one
eye--Denial of pension-Validity of.
Words and Phrases: ’Permanent incapacitation’--Interpre-
tation of--Para 4, Cl. 3(e), Freedom Fighters Pension
Scheme.
HEADNOTE:
Clause 3(e) of Para 4 of the Swatantrata Sainik Samman
Pension Scheme of the Government of India entitles a freedom
fighter to pension for having become permanently incapaci-
tated during firing or lathi charge in the freedom struggle.
The appellant applied for grant of pension on the ground
that he had suffered permanent loss of vision in his left
eye due to brutal lathi charge by the police against freedom
fighters. His claim of permanent loss of vision in the left
eye was duly certified by Government doctors. The District
Collector after making a detailed enquiry, certified the
claim of the appellant as a bona fide one and recommended
his case for grant of pension. The State Government also
appended their recommendation. The Ministry of Home Affairs,
however, declined to grant pension on the view that loss of
vision in one eye did not amount to permanent incapacita-
tion.
A single Judge of the High Court dismissed appellant’s
writ petition and a writ appeal against the said order was
also dismissed by a Division Bench.
In this appeal by special leave, it was contended for
the respondents that the incapacitation under clause 3(e)
must not only be permanent but it must also be a total one,
and since the appellant had not lost vision in both the eyes
the incapacitation, though permanent, was only partial and
not total; and that the petitioner had not been able to
produce any documentary evidence from official records of
the relevant period in support of his claim.
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Allowing the appeal,
HELD: 1.1 The words used in clause 3(e) of Para 4 of the
Pension Scheme are "permanently incapacitated" and not
’permanently totally incapacitated". The measure of test
thus laid down by the clause is the permanent nature of the
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incapacitation and not the total nature of the incapacita-
tion. If clause (e) were to be interpreted to include total
incapacitation then a freedom fighter who has lost a leg or
an arm cannot claim payment of pension on the basis of
permanent incapacitation inasmuch as the incapacitation
suffered by him is not of both the legs or both the arms. It
would be height of injustice to freedom fighters to construe
clause (e) in the said manner. 1724F; 725A-B]
1.2 In view of the certificate issued to him by the
Government doctors that the appellant had suffered permanent
incapacitation of his left eye due to lathi blows received
by him during the freedom struggle and the State Government
authorities having, after due enquiry, accepted the bona
fides of the appellant’s claim and recommended his case for
grant of pension the respondents were not justified in
refusing to grant him pension under clause (e) of the
Scheme. [724G, 726C, 725E]
2. No one can really expect official records to have
been preserved for a period of 40 years to prove the treat-
ment given to a freedom fighter for the injuries sustained
by him during the freedom struggle. Hence, the objection
relating to non-production of official records of the reley-
ant period by the appellant to prove the sustainment of
injury by him .deserves outright rejection as well as out-
right condemnation. [726B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4496 of
1989.
From the Judgment and Order dated 15.4.1986 of the
Madras High Court in Writ Appeal No. 411 of 1986.
C.K. Sucharita for the Appellant.
B. Dutta, Additional Solicitor General, (N.P.), P.P.
Singh and Mrs. Sushma Suri for the Respondents.
The following Order of the Court was delivered:
Delay condoned.
722
Leave granted. Heard counsel for the parties. The appel-
lant, who is a freedom fighter was refused the grant of
pension under the Swatantrata Sainik Samman Scheme by the
Ministry of Home Affairs, Union of India and hence the
appellant approached the High Court for the issue of a writ
of certiorarified mandamus. The appellant’s writ petition
was dismissed by a learned single Judge and the writ appeal
against the said order was also dismissed by a Division
Bench. Hence the present appeal by special leave.
Initially, the appellant sought the grant of pension on
the ground that as a freedom fighter he was kept in police
custody for fifteen days and after conviction he underwent
imprisonment for three and a half months. Since under the
Freedom Fighters Pension Scheme, a freedom fighter must have
undergone a minimum period of inprisonment for six months
for his participation in the freedom struggle in order to
get pension under that head, the appellant was refused
pension. Thereupon, he applied for grant of pension on
another ground viz. that he had suffered permanent loss of
vision in his left eye due to brutal lathi charge by the
police against freedom fighters. The appellant’s claim of
permanent loss of vision in the left eye was duly certified
by Government doctors. The District Collector, after making
a detailed enquiry, certified the claim of the appellant as
a bona fide one and recommended his case for grant of pen-
sion by letter dated 13.9.84.
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Accepting the report of the Collector, the Deputy Secre-
tary to the Government of Tamil Nadu addressed respondent
No. 2 as under:
"It is seen from the verification report that
Thiru R. Narayanan, the freedom fighter has
been permanently physically handicapped due to
his involvement in the freedom struggle of the
nation. In the circumstances stated above. I
am directed to request that the Government of
India may kindly be moved to sanction Swatan-
trata Sainik Samman Pension to Thiru R.
Narayanan of Salem District."
In spite of the medical certificates issued by Govern-
ment doctors and the recommendations of the District Collec-
tor and the State Government for grant of pension under the
S.S.S. Pension Scheme, the Ministry of Home Affairs declined
to grant pension to the appellant on the ground that "it is
not possible to grant Samman Pension in terms of permanent
incapacitation, hence your case stands rejected" by communi-
cation dated 30.4.85. It was in such circumstances the
appellant
723
moved the High Court of Madras for the issue of a writ of
certiorarilied mandamus but failed to meet with success.
On notice being issued to the respondents, a counter
affidavit has been filed on behalf of the Union of India by
Shri Kishan Chand, Under Secretary, Ministry of Home Af-
fairs. In the counter-affidavit it has been stated as fol-
lows:
"The alleged incapacity of his losing vision
of one eye as a result of lathi blow during
the freedom struggle is not considered as
permanent incapacitation as contemplated under
clause 3(e) under para 4 of the Scheme under
the heading ’who is eligible’. A person is
eligible for the pension under the Scheme if
he became permanently incapacitated during
firing or lathi charge which would mean a
person, in such a case, who has suffered
complete loss of eye sight."
.......................................
"The case of the petitioner has been consid-
ered and correctly rejected as per the terms
of Scheme, the petitioner not being eligible
for pension. Moreover, the petitioner has not
been able to produce any documentary evidence
from official records of the relevant period
in support of his claim of loss of vision in
one eye. In any case, the Government having
decided as a policy in not treating loss of
one eye as permanent incapacitation, a dis-
criminatory decision cannot be taken in favour
of the petitioner."
Learned counsel for the appellant urged before us that
the respondents are not justified in construing clause 3(e)
of Para 4 of the Pensions Scheme to mean that the incapaci-
ty, besides being permanent should also be of a total na-
ture, and as such the denial of pension to the appellant
under clause (e) is unjust. Under the Scheme a freedom
fighter is eligible to receive pension if he satisfies one
of the following clauses viz.
(a) Had suffered a minimum imprisonment of six
months (three months in the case of women);
(b) Had remained underground for more than six
months provided
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(i) he was a proclaimed offender; or
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(ii) he was a person on whom an award for
arrest had been announced or;
(iii) he was a person against whom detention
order had been issued but not served.
(c) Had been interned in his home or externed
from his district provided the period of
internment/externment was for six months or
more.
(d) Had his property confiscated or attached
and sold due to participation in the freedom
struggle;
(e) Had become permanently incapacitated
during firing or lathi charge;
(f) Had lost his job (Central or State Govern-
ment) and been thus deprived of his means of
livelihood on account of his participation in
the National movement."
We are now concerned only with the interpretation of
clause (e) of the Scheme. The clause only refers to perma-
nent incapacitaton due to firing or lathi charge and not to
total incapacitation. The respondents would however take the
stand that the incapacitation must not only be permanent but
it must also be a total one. Hence according to them, since
the appellant has not lost vision in both the eyes, the
incapacitation, though permanent is only partial and not
total and as such he is not eligible to grant of pension
under clause (e) of the Scheme.
The interpretation given by the respondents to clause
3(e) of Para 4 cannot be sustained because the words used in
the clause are permanently incapacitated’ and not ’perma-
nently totally incapacitated.’ If the stand of the respond-
ents is to be accepted, it would be opposed to the plain
meaning of the words and result in addition of more condi-
tions to the clause what the framers of the Scheme have laid
down. It cannot be disputed, in view of the certificates
issued to him by the Government doctors that the appellant
has suffered permanent incapacitation of his left eye due to
lathi blows received by him during the freedom struggle. The
question would then be whether that incapacity would satisfy
the requirement of clause (e) or not. As already stated,
clause (e) refers only to permanent incapacitation and not
total incapacitation of a permanent nature. It therefore
follows
725
that the measure of test laid down by the clause is the
permanent nature of the incapacitation and not the total
nature of the incapacitation. If clause (e) is to be inter-
preted in the manner set out in the counter-affidavit, it
would follow that a freedom fighter who has lost a leg or an
arm cannot claim payment of pension on the basis of perma-
nent incapacitation inasmuch as the incapacitation suffered
by him is not of both the legs or both the arms. It would be
the height of injustice to freedom fighters, who are a
diminishing lot, to construe clause (e) in the said manner.
Highly inequitable therefore it would be for the appellant
to be denied pension under the Scheme because he has suf-
fered loss of vision only in one eye and not in both the
eyes. The respondents have failed to see that under the
Scheme if a freedom fighter had undergone imprisonment or
had been underground for a minimum period of six months he
can be granted pension. In such circumstances can it be
contended that a person who has permanently lost his power
of vision in one eye due to firing or lathi charge cannot be
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granted pension unlike a person who has been in prison for
six months or had remained underground for six months in
order to evade arrest.
The Scheme has been formulated with a view to acknowl-
edge the services rendered to the country by patriotic
citizens during the freedom movement and who had suffered at
the hands of the British Rulers in one way or the other and
to compensate them in some measure for their sacrifices for
the sake of the country. The respondents are therefore not
justified in refusing to grant pension to the appellant
under clause (e) of the Scheme on the ground that the perma-
nent incapacitation suffered by him does not satisfy the
requirements of clause (e) of the Scheme. The learned Single
Judge and the Division Bench of the High Court, while re-
jecting the Writ Petition and Writ Appeal filed by the
appellant, have only taken into account the period of im-
prisonment undergone by the appellant and the said period
falling short of the prescribed minimum of six months and
have not considered the appellant’s claim for pension under
clause (e).
Before concluding the judgment we may also refer to two
other objections that have been raised by the respondents in
their counteraffidavits. The first one is that the appel-
lant’s claim for pension under clause (e) is an after
thought since he had putforth such a claim only after his
claim for pension on the ground of incarceration had been
rejected. The second objection putforth is that:
"the petitioner has not been able to produce any docu-
726
mentary evidence from official records of the relevant
period in support of his claim of loss of vision in one
eye."
There is neither justice nor grace in the respondent’s
putting forth such objections. No one can really expect
official records to have been preserved for a period of 40
years to prove the treatment given to the petitioner for the
injuries sustained by him during the freedom struggle. Hence
the objection relating to non-production of official records
of the relevant period by the appellant to prove the sus-
tainment of injury by him deserves outright rejection as
well as outright condemnation. As regards the criticism that
the appellant’s claim under Clause (e) appears to be an
after thought, this too merits instantaneous rejection. As
we have already pointed out, the government doctors who have
examined the appellant have found his claim of permanent
incapacitation of the left eye to be true and the State
Government authorities have, after due enquiry, accepted the
bona fides of the appellant’s claim and recommended his case
for grant of pension under the S.S.S. Scheme by the respond-
ents. Consequently, merely because the appellant, perhaps
out of ignorance of the several heads under which the claim
of pension could be made, had applied initially for grant of
pension under clause (e), it can never be said that the
present claim of the appellant is an after thought.
For all the aforesaid reasons, we allow the appeal with
costs of Rs.2,000 and quash the impugned order of the re-
spondents dated 30.4.1985, set aside the judgment of the
High Court and issue a rule absolute in favour of the appel-
lant as prayed for.
P.S.S. Appeal
allowed.
727